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European Court of Justice, March 27, 2014, C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproducktionsgesell-schaft mbH2
(Summary by Giancarlo F Frosio)3
The European Court of Justice has published a long awaited decision dealing with the legitimacy of blocking orders in PC Telekabel Wien GmbH v Constantin FilmVerleih GmbH e Wega Filmsproduktionsgesellschaft mbH. The decision came a few weeks after the Advocate General delivered his opinion on the case. We refer to a previous blog post discussing that opinion for any factual background information to the case. Additional coverage of the case can be found also here. The core of the ECJ decision substantially departed from the Advocate General conclusions. In a quite surprising twist, the ECJ is loosening the stricter standard proposed by the Advocate General. Rather than requiring a court injunction to specify the measures that an access provider must take in order to prevent further copyright infringement online, the ECJ legitimates blanket injunctions.5
Preliminary the ECJ has confirmed that an access provider whose services are used to place protected subject matter online without the agreement of the rightholders must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29. Article 8(3) provides for the possibility for rightholders to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright. The ECJ, therefore, in its decision, turns to the legitimacy of these injunctions.6
First, the ECJ stated that EU law must be interpreted as not precluding a court injunction that does not specify the measures which an access provider must take to block access to a website making available copyrighted material without the rightsholders’ permission.7
Second, the ECJ concludes that blocking orders can be imposed on access providers when they can avoid incurring coercive penalties for breach of that injunction by showing that they have taken all reasonable measures. According to the ECJ, measures are deemed “reasonable” provided that8
(i) they do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and9
(ii) they have the effect of preventing unauthorized access to copyrighted materials or, at least, of seriously discouraging internet users from accessing infringing materials.10
The ECJ observed that this arrangement should serve best the balance between (i) copyrights and related rights, (ii) the freedom to conduct a business, and (iii) the freedom of information of internet users.
November 27, 2017
blocking orders intermediary liability secondary liability ecj europe copyright
Giancarlo Frosio, PhD
CEIPI, Université de Strasbourg
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